Hi, today we’re sitting with Spencer Freeman, a personal injury attorney in Tacoma, Washington, and today we’re going to be discussing something that has changed the course of the legal practice in regards to litigation against the government agencies, whether it’s federal government…. Well, actually, it is the federal government. Well, let me ask that question in a second.
What I’m specifically referring to is the Chevron decision that came out recently or the Chevron doctrine, and it was overturned. It had been in effect for 40 years, and it was overturned recently. And that has caused ramifications and an earthquake, essentially, through the legal industry. But in a prior conversation before this interview with Spencer, he told me that the news organizations are not presenting the absolute truth to the public about this reversal of the Chevron doctrine. So, we’re going to get into that. So, Spencer, thank you very much. And before we start, can you give a little bit of an insight of what was this Chevron doctrine and how it was applied to litigation for the last years?
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Sure. So, I think in the most simplest form, the Chevron doctrine meant that any court had to give a governmental agency strong deference to any of their actions, whether it’s a rulemaking action or maybe a licensing action or an action that agency may have taken against a party. And by deference, what I mean is that if that action is challenged, the challenger had to show not just that the agency was wrong in their action or their decision, but that they were unreasonably wrong. There was no reasonable interpretation of the application of statutes or guidelines or federal rules in the agency action, and so it was really a high bar to overturn an action by the agency. That Chevron doctrine lasted a long time, and it made it very, very difficult and sometimes impossible to get an agency action or decision overturned.
Well, you just used the word impossible. As you’re describing that, it sounds like… that one, in order to be able to sue, the action has to be so egregious and so clear, and that would prohibit a lot of… a lot of litigation where it didn’t quite meet that standard. So, what changed with this lawsuit?
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Well with this lawsuit, what the Supreme Court has done essentially is said that you don’t have to meet the standard that the agency was unreasonable in its interpretation or unreasonable in its action. It’s enough now to just show that the agency decision or the agency action was wrong.
Well, it seems to me that prior to the overturning of Chevron doctrine, that an agency now, well, let me ask this question. Is it just federal agencies or is it county or state or even city agencies?
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Well, it’ll be interesting. I think that there’s an argument to be made that that, that the… that the Supreme Court’s ruling will trickle down to apply towards state agencies as well. I don’t… you know, I don’t know that that’s definitely going to be the case. That’s certainly going to be a litigant’s position.
It makes sense because you couldn’t have one and not have the other, you know, obviously government agencies. Let’s just remain here in the federal realm. So. it seems to me that it takes the decision, it takes the absolute authority, and I’m going to use that word, away from the agency who says, “doesn’t matter if I did something wrong, it was our decision, this is our policy, you can’t sue us”.
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
So… and I’m going to correct one thing you said, you can always sue them, but is it going to get dismissed? So, I think it does reduce absolute authority. And that, from my perspective, and the work I’ve done in my career, that’s a good thing. It’s easier now to hold those agencies in check and make sure that their decisions are correct. And that was really hard to do before. Nobody has absolute authority necessarily, so people can maybe nitpick with that word, but federal agencies were able to do what they want, and unless you could show they were being, quote, unreasonable, you weren’t going to be able to do that. They employ experts, right? I mean, if an agency, whether it’s the EPA, or the FDA, or the FCC, right, they employ people that are expert in their fields, and just by having the expert, courts were forced to say, well, they’ve got an expert on their side saying this, therefore, their position was based in some reason, and we’re not going to overturn it. Now that’s not true.
Well, a couple of points that I would like to make here. One, the idea of quote an expert. I mean, you know, they’re on every street corner if you want to be able to look at their resumes and CVs and call them that. And of course they’re advocating for the side that they’re being paid, right? From which they’re being paid. The second one, I’m going back to that word unreasonable. That seems like it… and it did… open up a can of worms for 40 years. How do you prove what’s reasonable and what’s not reasonable?
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Yeah, that’s it’s such a high bar and it’s a very difficult thing to do to say that the agency action especially when they had, you know quote, experts on their side… that they acted without reason, or they acted unreasonably. And just to dovetail off something you just said, in a vacuum, maybe the Chevron doctrine would be fine because we do want the federal agencies or state agencies to employ experts. We do want to rely on their expertise. I mean, that would be a good thing. The problem is that industries run those agencies now. Right, you’ve got such agency or industry infiltration into those agencies, that those agencies are really influenced by whatever industry they’re supposed to be regulating. And so those regulations are really industry favored, even though some people maybe not want to admit that. I think that that’s demonstrably true. And so, to be able to show that they’re wrong, I think is really key to protect the citizens.
Well, when this Chevron doctrine came, excuse me, when the overturning, when the case overturned the Chevron Doctrine….the mainstream news, the newspapers, TV, proclaimed to the world it was the worst thing that could ever happen. And they hypothesize all sorts of doomsday scenarios. Why?
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Well, that’s an interesting question. Why? We could go through, hey listen, what sells news, what sells clickbait, it’s fear, right? And then we’re going to stoke some fear. But what really interests me is the people that were stoking that fear and the fear that they were stoking. Supposedly, you know, the mainstream media is supposed to be left-leaning. Supposedly, left-leaning is supposed to be protective of the citizens. And what they were saying, though, in my mind, was really dangerous, and it’s dangerous for two reasons.
One is that it wasn’t accurate. And two is that these are people we expect to be watchdogs of the citizens and what they were promoting was a doctrine that did the exact opposite of that. The Chevron Doctrine did not protect the citizens, it protected the industries. So, for the mainstream media or left-side media to come out and say things like… “oh now courts can’t give deference to the experts of these agencies”…that’s wrong and here’s why that’s wrong. If I’m a litigant and I’ve got to go to court and I’m going to sue an agency and say they’re wrong… I don’t just get to go to court and write that on a piece of paper and have the court make a decision based on something that I wrote. That’s not how courts work.
Courts operate off of evidence and I would have to bring in experts to testify in front of the court, experts that would be challenged by the other side, experts that would have to give reasons for their opinions, the facts that they rely on, and what their opinions are and combat what federal agency experts are and then the court would have to say make a decision as far as who’s right. Maybe it’s a jury trial, maybe a jury makes that decision but it’s not just without other experts…. In that scenario now we’ve got competing experts to testify and now you’ve got a trier of fact to say which expert’s right and that’s how the system should work if we’re going to challenge and by the way, that’s the best way to protect the citizens.
Well, it sounds like, in a short descriptive term, it leveled the playing field. You know but before it didn’t seem like that… so now… well, what does that mean for… well, let me ask this question. What does it mean for the public to be able to get in terms of a PI, a resolution to their situation, you know, recompense?
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Well, so it depends and I’m not, you know… by PI do you mean a personal injury case?
Yes
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Yeah, so, you know, the Chevron doctrine is not going to really have a lot of effect in the personal injury industry It’s going to take a lot more effect on protecting or dealing with certain professional licenses. It’s kind of a lot more effect on dealing with what you know, maybe companies…are they, are they complying with industry standards? Are they not complying with… I should rather say, standards set by the agencies? But what it’s going to do is… it’s going to make it easier to force companies to comply with those regulations. It’s also going to make it easier for the citizens to come forward and say, “hey, these regulations that are being put in place really don’t protect us. They need to be different”.
Will that increase whistleblower action?
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
It could.
I was just thinking about that, that that might be because they’re no longer afraid that it’s a waste of time.
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Right. And it certainly is going to encourage more attorneys to get involved in that type of litigation, that’s for sure.
Well, that makes sense. So, is it going to be the… when you say the policies that are affecting companies, is it… those policies affecting companies or is it going to be the actual government agencies themselves or is it both?
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
It could be both and you know we can use an example and I can’t tell you I’m really well versed in this topic but if we look at 5G and I think sometime in the last 12 to 18 months, a federal court ultimately came back and required the FDA to do different licensing for 5D or 5G or require the industry to present different evidence about whether 5G is safe. You know, the Chevron doctrine makes it easier for a court to get involved if a litigant brings it forward and force the FDA to impose certain standards or to enforce certain standards where maybe the FDA or the FCC didn’t do that before.
Okay, well it still is amazing to me… in my prep work for this interview, it was amazing how negative… I’m going back to this, how negative the press was on this court ruling. And it just doesn’t make any sense to me.
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
It really bothered me. And even leading up to the Chevron doctrine arguments that happened for the Supreme Court, I got that sense that the media was taking a certain view of this, but I was really pleased to see that the Supreme Court overturned the Chevron Doctrine. I think it’s a long time coming. I think that it is really important that it get overturned to protect the citizens, and it bothers me a lot that the media portrays it in a way that makes the public distrust the overturning of the Chevron Doctrine, and then distrust the Supreme Court. It’s, and it’s, you know, whether it… all this is, is trying to stoke fear for the sake of selling news, I don’t know, but it really bothers me.
Well, hopefully, you and a number of other people, can get the actual truth of what’s going to happen when it’s applied at the litigation level, or, you know, or at the pre-litigation level in any issues where that may arise because it seems like it’s going to be a great deal of help versus the inability to resolve the situation as it has been in the last 40 years.
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Well, just going back to the rhetoric that I’ve heard in the media that the court now took away our ability to rely on experts in any given industry is simply not true, right? Maybe we don’t have to… Now we don’t have to rely on the experts paid by the government. Now we get to have a full discourse on what the expert analysis really should be and what the right answer is.
It makes sense. I could see, and you and I, full disclosure to the viewers, you and I have had some experience with the Chevron doctrine prohibiting us to be able to move forward in some cases. And so, it sounds like not just leveling the playing field but allowing information to come out that will obviously change that procedure, that policy, that regulation for the better.
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Agreed. We should all, all of us should be against any doctrine or any rule that gives strong deference to a government action just because they’re the government. We should all be against that.
Well, thank you very much. We’ll get you back on. I’m sure there’s going to be more articles on that. Thank you very much. I appreciate that…Spencer.
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Thank you. I appreciate it.
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Video – Attorney Spencer Freeman Discusses The Shocking Ramifications In The Legal Realm After The Supreme Court Reversal Of The Chevron Doctrine
Home » Videos » Legal Commentary » Video – Attorney Spencer Freeman Discusses The Shocking Ramifications In The Legal Realm After The Supreme Court Reversal Of The Chevron Doctrine
Video – Attorney Spencer Freeman Discusses The Shocking Ramifications In The Legal Realm After The Supreme Court Reversal Of The Chevron Doctrine
Ray Hrdlicka – Host – Attorneys.Media
Hi, today we’re sitting with Spencer Freeman, a personal injury attorney in Tacoma, Washington, and today we’re going to be discussing something that has changed the course of the legal practice in regards to litigation against the government agencies, whether it’s federal government…. Well, actually, it is the federal government. Well, let me ask that question in a second.
What I’m specifically referring to is the Chevron decision that came out recently or the Chevron doctrine, and it was overturned. It had been in effect for 40 years, and it was overturned recently. And that has caused ramifications and an earthquake, essentially, through the legal industry. But in a prior conversation before this interview with Spencer, he told me that the news organizations are not presenting the absolute truth to the public about this reversal of the Chevron doctrine. So, we’re going to get into that. So, Spencer, thank you very much. And before we start, can you give a little bit of an insight of what was this Chevron doctrine and how it was applied to litigation for the last years?
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Sure. So, I think in the most simplest form, the Chevron doctrine meant that any court had to give a governmental agency strong deference to any of their actions, whether it’s a rulemaking action or maybe a licensing action or an action that agency may have taken against a party. And by deference, what I mean is that if that action is challenged, the challenger had to show not just that the agency was wrong in their action or their decision, but that they were unreasonably wrong. There was no reasonable interpretation of the application of statutes or guidelines or federal rules in the agency action, and so it was really a high bar to overturn an action by the agency. That Chevron doctrine lasted a long time, and it made it very, very difficult and sometimes impossible to get an agency action or decision overturned.
Ray Hrdlicka – Host – Attorneys.Media
Well, you just used the word impossible. As you’re describing that, it sounds like… that one, in order to be able to sue, the action has to be so egregious and so clear, and that would prohibit a lot of… a lot of litigation where it didn’t quite meet that standard. So, what changed with this lawsuit?
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Well with this lawsuit, what the Supreme Court has done essentially is said that you don’t have to meet the standard that the agency was unreasonable in its interpretation or unreasonable in its action. It’s enough now to just show that the agency decision or the agency action was wrong.
Ray Hrdlicka – Host – Attorneys.Media
Well, it seems to me that prior to the overturning of Chevron doctrine, that an agency now, well, let me ask this question. Is it just federal agencies or is it county or state or even city agencies?
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Well, it’ll be interesting. I think that there’s an argument to be made that that, that the… that the Supreme Court’s ruling will trickle down to apply towards state agencies as well. I don’t… you know, I don’t know that that’s definitely going to be the case. That’s certainly going to be a litigant’s position.
Ray Hrdlicka – Host – Attorneys.Media
It makes sense because you couldn’t have one and not have the other, you know, obviously government agencies. Let’s just remain here in the federal realm. So. it seems to me that it takes the decision, it takes the absolute authority, and I’m going to use that word, away from the agency who says, “doesn’t matter if I did something wrong, it was our decision, this is our policy, you can’t sue us”.
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
So… and I’m going to correct one thing you said, you can always sue them, but is it going to get dismissed? So, I think it does reduce absolute authority. And that, from my perspective, and the work I’ve done in my career, that’s a good thing. It’s easier now to hold those agencies in check and make sure that their decisions are correct. And that was really hard to do before. Nobody has absolute authority necessarily, so people can maybe nitpick with that word, but federal agencies were able to do what they want, and unless you could show they were being, quote, unreasonable, you weren’t going to be able to do that. They employ experts, right? I mean, if an agency, whether it’s the EPA, or the FDA, or the FCC, right, they employ people that are expert in their fields, and just by having the expert, courts were forced to say, well, they’ve got an expert on their side saying this, therefore, their position was based in some reason, and we’re not going to overturn it. Now that’s not true.
Ray Hrdlicka – Host – Attorneys.Media
Well, a couple of points that I would like to make here. One, the idea of quote an expert. I mean, you know, they’re on every street corner if you want to be able to look at their resumes and CVs and call them that. And of course they’re advocating for the side that they’re being paid, right? From which they’re being paid. The second one, I’m going back to that word unreasonable. That seems like it… and it did… open up a can of worms for 40 years. How do you prove what’s reasonable and what’s not reasonable?
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Yeah, that’s it’s such a high bar and it’s a very difficult thing to do to say that the agency action especially when they had, you know quote, experts on their side… that they acted without reason, or they acted unreasonably. And just to dovetail off something you just said, in a vacuum, maybe the Chevron doctrine would be fine because we do want the federal agencies or state agencies to employ experts. We do want to rely on their expertise. I mean, that would be a good thing. The problem is that industries run those agencies now. Right, you’ve got such agency or industry infiltration into those agencies, that those agencies are really influenced by whatever industry they’re supposed to be regulating. And so those regulations are really industry favored, even though some people maybe not want to admit that. I think that that’s demonstrably true. And so, to be able to show that they’re wrong, I think is really key to protect the citizens.
Ray Hrdlicka – Host – Attorneys.Media
Well, when this Chevron doctrine came, excuse me, when the overturning, when the case overturned the Chevron Doctrine….the mainstream news, the newspapers, TV, proclaimed to the world it was the worst thing that could ever happen. And they hypothesize all sorts of doomsday scenarios. Why?
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Well, that’s an interesting question. Why? We could go through, hey listen, what sells news, what sells clickbait, it’s fear, right? And then we’re going to stoke some fear. But what really interests me is the people that were stoking that fear and the fear that they were stoking. Supposedly, you know, the mainstream media is supposed to be left-leaning. Supposedly, left-leaning is supposed to be protective of the citizens. And what they were saying, though, in my mind, was really dangerous, and it’s dangerous for two reasons.
One is that it wasn’t accurate. And two is that these are people we expect to be watchdogs of the citizens and what they were promoting was a doctrine that did the exact opposite of that. The Chevron Doctrine did not protect the citizens, it protected the industries. So, for the mainstream media or left-side media to come out and say things like… “oh now courts can’t give deference to the experts of these agencies”…that’s wrong and here’s why that’s wrong. If I’m a litigant and I’ve got to go to court and I’m going to sue an agency and say they’re wrong… I don’t just get to go to court and write that on a piece of paper and have the court make a decision based on something that I wrote. That’s not how courts work.
Courts operate off of evidence and I would have to bring in experts to testify in front of the court, experts that would be challenged by the other side, experts that would have to give reasons for their opinions, the facts that they rely on, and what their opinions are and combat what federal agency experts are and then the court would have to say make a decision as far as who’s right. Maybe it’s a jury trial, maybe a jury makes that decision but it’s not just without other experts…. In that scenario now we’ve got competing experts to testify and now you’ve got a trier of fact to say which expert’s right and that’s how the system should work if we’re going to challenge and by the way, that’s the best way to protect the citizens.
Ray Hrdlicka – Host – Attorneys.Media
Well, it sounds like, in a short descriptive term, it leveled the playing field. You know but before it didn’t seem like that… so now… well, what does that mean for… well, let me ask this question. What does it mean for the public to be able to get in terms of a PI, a resolution to their situation, you know, recompense?
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Well, so it depends and I’m not, you know… by PI do you mean a personal injury case?
Ray Hrdlicka – Host – Attorneys.Media
Yes
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Yeah, so, you know, the Chevron doctrine is not going to really have a lot of effect in the personal injury industry It’s going to take a lot more effect on protecting or dealing with certain professional licenses. It’s kind of a lot more effect on dealing with what you know, maybe companies…are they, are they complying with industry standards? Are they not complying with… I should rather say, standards set by the agencies? But what it’s going to do is… it’s going to make it easier to force companies to comply with those regulations. It’s also going to make it easier for the citizens to come forward and say, “hey, these regulations that are being put in place really don’t protect us. They need to be different”.
Ray Hrdlicka – Host – Attorneys.Media
Will that increase whistleblower action?
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
It could.
Ray Hrdlicka – Host – Attorneys.Media
I was just thinking about that, that that might be because they’re no longer afraid that it’s a waste of time.
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Right. And it certainly is going to encourage more attorneys to get involved in that type of litigation, that’s for sure.
Ray Hrdlicka – Host – Attorneys.Media
Well, that makes sense. So, is it going to be the… when you say the policies that are affecting companies, is it… those policies affecting companies or is it going to be the actual government agencies themselves or is it both?
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
It could be both and you know we can use an example and I can’t tell you I’m really well versed in this topic but if we look at 5G and I think sometime in the last 12 to 18 months, a federal court ultimately came back and required the FDA to do different licensing for 5D or 5G or require the industry to present different evidence about whether 5G is safe. You know, the Chevron doctrine makes it easier for a court to get involved if a litigant brings it forward and force the FDA to impose certain standards or to enforce certain standards where maybe the FDA or the FCC didn’t do that before.
Ray Hrdlicka – Host – Attorneys.Media
Okay, well it still is amazing to me… in my prep work for this interview, it was amazing how negative… I’m going back to this, how negative the press was on this court ruling. And it just doesn’t make any sense to me.
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
It really bothered me. And even leading up to the Chevron doctrine arguments that happened for the Supreme Court, I got that sense that the media was taking a certain view of this, but I was really pleased to see that the Supreme Court overturned the Chevron Doctrine. I think it’s a long time coming. I think that it is really important that it get overturned to protect the citizens, and it bothers me a lot that the media portrays it in a way that makes the public distrust the overturning of the Chevron Doctrine, and then distrust the Supreme Court. It’s, and it’s, you know, whether it… all this is, is trying to stoke fear for the sake of selling news, I don’t know, but it really bothers me.
Ray Hrdlicka – Host – Attorneys.Media
Well, hopefully, you and a number of other people, can get the actual truth of what’s going to happen when it’s applied at the litigation level, or, you know, or at the pre-litigation level in any issues where that may arise because it seems like it’s going to be a great deal of help versus the inability to resolve the situation as it has been in the last 40 years.
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Well, just going back to the rhetoric that I’ve heard in the media that the court now took away our ability to rely on experts in any given industry is simply not true, right? Maybe we don’t have to… Now we don’t have to rely on the experts paid by the government. Now we get to have a full discourse on what the expert analysis really should be and what the right answer is.
Ray Hrdlicka – Host – Attorneys.Media
It makes sense. I could see, and you and I, full disclosure to the viewers, you and I have had some experience with the Chevron doctrine prohibiting us to be able to move forward in some cases. And so, it sounds like not just leveling the playing field but allowing information to come out that will obviously change that procedure, that policy, that regulation for the better.
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Agreed. We should all, all of us should be against any doctrine or any rule that gives strong deference to a government action just because they’re the government. We should all be against that.
Ray Hrdlicka – Host – Attorneys.Media
Well, thank you very much. We’ll get you back on. I’m sure there’s going to be more articles on that. Thank you very much. I appreciate that…Spencer.
Spencer Freeman – Personal Injury Attorney – Pierce County, WA
Thank you. I appreciate it.
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